Kisoso v Kimamet & another (Suing as legal representatives of Kiporot Ole Totona alias Singo Arap Totona (Deceased) & 3 others (Environment & Land Case 267 of 2017) [2024] KEELC 848 (KLR)
The bottom line
#A Kenyan court set aside its own judgment after learning a Court of Appeal ruling had quietly reinstated the defendants' counterclaim, and ordered the entire case to start afresh.
What this practically means
#Executive summary
#Key legal issues
#Discovery of new and important matter for review
The Court of Appeal judgment of 1/4/2022, never transmitted to the applicants or their counsel, constituted new and important matter within Order 45 Rule 1(b).
The applicants' counsel's email address was missing from the Court of Appeal's dispatch of the judgment, and the respondent produced no evidence that the judgment was transmitted to her side either. The court gave the applicants the benefit of doubt and found the undiscovered judgment, given its ramifications on the conduct of the trial, fell squarely within the 'new and important matter or evidence' category.
Due diligence in discovering the Court of Appeal judgment
The court could not conclude that the applicants or their counsel lacked due diligence, since there was no proof that notice of delivery of the judgment was received by either party's counsel.
An appeal is a different proceeding whose delivery of decisions is at that court's discretion. Neither party's counsel received notice of the judgment or the judgment itself, so there was no yardstick to gauge the applicants' diligence. All parties were 'in the same boat', so the court could not find the omission that caused ignorance of the judgment was a failure of sufficient diligence.
Any other sufficient reason - merits of the case heard without all counterclaim parties
That the case was heard and determined without the defendants to the counterclaim who had been struck out, and whose counterclaim the Court of Appeal reinstated, was a sufficient reason to review and set aside the judgment.
The Court of Appeal had set aside Sila J's ruling striking out the counterclaim defendants and reinstated the counterclaim, directing service within 10 days and hearing before a judge other than Sila J. By the time of that judgment the trial had long commenced before Ohungo J, and neither party nor the trial court was aware of the appellate judgment. Proceeding without the reinstated counterclaim parties warranted setting aside the judgment so the matter could be heard de novo.
Timeousness of the review application
The application, filed about 10 days after counsel learned of the appellate judgment on 26/1/2023, was not inordinately delayed.
The email making the applicants' counsel aware of the delivered appeal judgment is dated 26/1/2023; the review application was filed on 6/2/2023, a difference of about 10 days, which the court held did not amount to inordinate delay.
Legal principles established
#- The grounds for review are discovery of new and important matter or evidence, mistake or error apparent on the face of the record, any other sufficient reason (need not be analogous to the other grounds), and that the application be brought timeously.
- 'Any other sufficient reason' for review need not be analogous with the other grounds in Order 45 rule 1, as that would clog the unfettered right given by section 80 of the Civil Procedure Act.
Court orders
#- 1.The judgment of the court delivered on 19th January 2023 is set aside on account of the discovery of the Court of Appeal judgment/orders of 1st April 2022 in Nakuru Civil Appeal No. 117 of 2017 reinstating the defendants' counterclaim
- 2.The present suit shall be heard de novo with all the parties in the counterclaim on board
- 3.The costs of the present application shall be in the cause
- 4.The matter to be mentioned before the ELC court at Nakuru on 27/3/2024 for further directions
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisoso v Kimamet & another (Suing as legal representatives of Kiporot Ole Totona alias Singo Arap Totona (Deceased) & 3 others (Environment & Land Case 267 of 2017) [2024] KEELC 848 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/848/eng@2024-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.